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Exh
ibit 10.1
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Furuno Electric Company, Ltd. (" MANUFACTURER" )
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Section 1. Purchase and Sale of Products 1
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1.1
Orders
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1.2
Delivery
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1.3
Rejection of Noncomplying Products 2
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1.4
2
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Warranty
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1.6
Location of Manufacture 2
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1.7
3
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Compensation
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2.1
Purchase Price of Products 3
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Invoice and Payment
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2.3
3
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2.4
4
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4
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3.1
4
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5
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4.1
5
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4.2
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4.3
6
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4.4
6
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4.5
7
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Section 5.
7
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MANUFACTURER-Furnished Items
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5.2
Products
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5.3
Product Processes 8
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5.4
8
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Implementation
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Section 6.
Protection of Confidential Information
8
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6.1
8
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Exceptions
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Section 7.
Term and Termination 9
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7.1
9
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Optional Termination
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7.3
Termination for Material Breach or Default
9
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7.4
10
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End of the Term
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Section 8.
Indemnification 10
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8.1
10
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By MANUFACTURER
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8.3
Notice and Cooperation 11
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8.4
11
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Miscellaneous
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9.1
Independent Contractor 11
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9.2
12
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9.3
12
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Rights and Remedies Cumulative
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9.5
Publicity
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9.6
Nonwaiver
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9.7
Assignment
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9.8
No Third Party Beneficiaries 13
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9.9
13
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Attorneys ' Fees
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9.11
Applicable Law
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9.12
Amendments
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9.13
Entire Agreement 14
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Exhibit
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Preamble
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Product Description and Specifications Glossary
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This Agreement, dated as of 01 July 2006 is made and entered into by and between: Combimatrix Corporation, a
Delaware corporation (" Company" ); and Furuno Electric Company, Ltd, a Japanese corporation ("
MANUFACTURER" ). The definitions of certain terms used in this Agreement are set forth in the Glossary attached as Exhibit A.
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arsid5580948 A.
Company develops, markets and sells electrode-containing microarray devices having content synthesized thereon or ready for synthesis, associated software, associated reagents, and associated instrumentation.
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MANUFACTURER manufactures medical devices having the ability to transfer exact amounts of fluids.
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Company desires to engage MANUFACTURER, and MANUFACTURER desires to be engaged by Company, to exclusively manufacture and supply a certain Synthesizer instrument developed under the Development Agreement dated 09 August 2004 (" BTS"
) to Company subject to a nd in accordance with the terms and conditions of this Agreement.
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The Parties agree as follows:
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Purchase and Sale of Products
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1.1
Orders
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MANUFACTURER shall make and deliver to Company or its designee such Products as Company may from time to time order from MANUFACTURER under this Section 1. Each of Company '
s orders under this Section 1 shall specify: (a) the name and part number of each P r
oduct being ordered; (b) the quantity of each Product being ordered; (c) the purchase price of each Product being ordered; (d) the dates upon which the Products are to be shipped by MANUFACTURER, (e) the destination to which the Products are to be shipped
by MANUFACTURER; (f) the purchase order number and billing instructions; and (g) any additional shipping instructions (including, without limitation, specification of any particular carrier, insurance, means of shipment or packaging required by Company),
p
rovided however that unless otherwise approved by MANUFACTURER, Company shall not specify any date for delivery of any Product less than four (4) months after the date that Company submits the order to MANUFACTURER.
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1.2
Delivery
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Prior to shipment, MANUFACTURER shall inspect each Product to ensure compliance with the warranty set forth in paragraph 1.5 and compliance with performance specifications, which specifications are to be agreed to by the parties. MANUFACTURER shall
properly package the Products in accordance with the Specifications, any instructions set forth in Company '
s order and as otherwise required for protection against any damage or deterioration during shipment. MANUFACTURER shall ship all Products ordered b
y Company pursuant to paragraph 1.1 in accordance with all shipping instructions set forth in Company '
s order. Unless otherwise specified in the applicable order, MANUFACTURER shall ship all Products FOB the MANUFACTURER Facility to the shipping destinati o
n specified in the applicable order. Company shall pay or reimburse all shipping costs reasonably incurred by MANUFACTURER to ship any Products in accordance with the shipping instructions set forth in Company '
s order, including duties and customs costs. T itle of the Products shall pass to Company upon MANUFACTURER '
s receipt of the payment for the said Products. Risk of loss with respect to any Product shall pass to Company upon loading of the Product at Manufacturer to the carrier in accordance with Compa n
y ' s order.
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1.3
Rejection of Noncomplying Products
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Company may reject any Product, within thirty (30) days after the Company '
s receipt thereof that does not comply with the Warranty set forth in paragraph 1.5. Company shall not be obligated to pay any purchase price, shipping costs or other amounts otherwise payable to MANUFACTURER for any Products rejected in accordance with t
h is paragraph.
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1.4
Schedule; Delay
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MANUFACTURER shall ship all Products ordered by Company under this Section 1 in accordance with the shipping schedule and instructions set forth in Company ' s applicable order under paragraph 1.1. Should MAN
UFACTURER anticipate that the shipment of any Products ordered by Company be delayed by any reason, MANUFACTURER shall notify Company thereof immediately, and thereafter MANUFACTURER and Company shall discuss in good faith on the shipment date of the Prod
u cts. However, MANUFACTURER shall not be liable for any delay in shipment due to any causes that are beyond the reasonable control of MANUFACTURER and that cannot be overcome by MANUFACTURER
' s exercise of reasonable diligence, provided that MANUFACTURER gi v
es Company prompt notice of any circumstances that may give rise to any delay, the anticipated duration of delay and the action being taken by MANUFACTURER to mitigate the delay and that MANUFACTURER uses its reasonable best efforts to mitigate the delay.
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1.5
Warranty
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MANUFACTURER warrants that, upon delivery, each Product shall: (a) comply with all applicable Specifications; (b) be free from all defects in material and workmanship; and (c) be free and clear of all mortgages, security interests, levies, liens and encum
b
rances. MANUFACTURER DISCLAIMS ALL OTHER WARRANTIES (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) REGARDING THE PRODUCTS AND Company HEREBY AGREES THAT NO SUCH OTHER WARRANTIES APPLY TO ANY PR
O DUCT.
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[redacted]" from the date of shipment " [redacted]" from the Date of Installation at a customer facility, whichever comes first.
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The warranty under this Section 1.5 shall be limited to free supply of replacement Products, parts or components to repair or replace any defective Products, and shall not apply to the defects arising from any of the foregoing:
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of the Products;
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(c) modification or alteration without prior written permission of MANUFACTURER; or
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1.6
Manufacturing Hold
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During the period of " [redacted]"
following the first order by Company, the Company may request MANUFACTURER to hold the fulfillment of a purchase order for a specified period of time. The maximum time period that an order may be held by the MANUFACTURER
is " [redacted]" . The request to hold fulfillment of a purchase order by Company must be made before the shipping date of an order has been arranged by MANUFACTURER or no longer than "
[redacted]" after the purchase order was sent by the Company.
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1.7
Product Liability
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MANUFACTURER shall maintain product liability insurance coverage for the Products as the manufacturer of the Products on such terms and conditions as MANUFACTURER deems suitable. Company shall maintain product liability insurance coverage as a distributor
of the Products and other chemicals and disposable items consistent with the terms and conditions provided to customers.
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1.8
Manuals
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MANUFACTURER shall be responsible for the creation of and updating of a service manual with support from Company concerning hardware and firmware aspects of the BTS instrument. Company shall be responsible for the creation and updating of a Users Manual w
i th support from MANUFACTURER concerning any and all external (to the BTS instrument) software aspects.
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1.8
Location of Manufacture
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Except as otherwise approved by Company in writing, MANUFACTURER shall Make all Products at the MANUFACTURER Facility. Upon Company '
s request, MANUFACTURER shall provide Company safe and sufficient access to the MANUFACTURER Facility and any other locatio n
at which any Product may be Made as reasonably required for Company to observe, monitor and evaluate the Making of Products under this Agreement; provided that such access shall be during MANUFACTURER's normal business hours and will be conducted in a ma
n
ner which does not unreasonably interfere with MANUFACTURER's business. MANUFACTURER shall ensure that the MANUFACTURER Facility and any other location at which any Product may be Made shall comply with any and all Governmental Requirements applicable to
t he Making of the applicable Products.
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1.9
Product Records
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MANUFACTURER shall prepare appropriate records regarding each Product Made under this Agreement (including, without limitation, records of the MANUFACTURER Direct Costs and the serial code, date code, lot number, inspector, and shipment information relati
n g to each Product, but excluding the costs of raw materials, assembly procedures and adjustment procedures). MANUFACTURER shall maintain such records for a period of "
[redacted]" years after the end of the Term. Upon Company ' s request, MANUFACTURER shall m
ake such records available for audit, inspection and reproduction by or on behalf of Company. Further, MANUFACTURER shall provide to Company a complete bill of materials for each Product showing the supplier and cost of each component of any Product toget
h er with such other information as Company may reasonably request regarding any Product.
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1.10
Service Parts
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MANUFACTURER will be responsible for creating a list of spare parts and a transfer price list. Company shall be responsible for se
tting up an instrument service infrastructure to service the installed base of BTS instruments, including an inventory of most frequently used spare parts. The MANUFACTURER inventory of parts shall include at a minimum an amount of commonly ordered spare
p arts s ...